Kerala High Court
Nawas T vs State Of Kerala on 19 August, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY,THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936
Crl.Rev.Pet.No. 1645 of 2014 ()
--------------------------------
AGAINST THE ORDER IN CMP 7104/2014 of JUDICIAL FIRST CLASS MAGISTRATE
COURT, MALAPPURAM DATED 19-08-2014
REVISION PETITIONER(S):
--------------------------------------------
NAWAS T., S/O. ABDUL LATHEEF,
KOYAMBURATH VEED, VAZHAYUR,
MALAPPURAM DISTRICT.
BY ADV. SRI.T.K.AJITH KUMAR
RESPONDENT(S):
----------------------------
STATE OF KERALA,
REPRESENTED BY SUB INSPECTOR OF POLICE, VAZHAKKAD,
MALAPPURAM DISTRICT BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
23-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JJJ
K.HARILAL, J.
------------------------------------------
Crl.R.P. No. 1645 of 2014
------------------------------------------
Dated this the 23rd day of September, 2014
O R D E R
The revision petitioner is the registered owner of the motorcycle bearing registration No.KL-56-E-4430. The said vehicle was seized by the respondent/Police on the allegation of illegal transportation of river sand. As the vehicle was kept open to sun and rain, which would ruin the vehicle, the petitioner preferred an application vide C.M.P. No.7104/2014 before the Judicial First Class Magistrate's Court, Malappuram, seeking interim custody of the vehicle. The said application was allowed by the court below granting interim custody of the vehicle to the petitioner subject to certain conditions. This revision petition is filed challenging the conditions imposed in the impugned order to release the vehicle.
Crl.R.P. No. 1645 of 2014 -2-
2. The learned counsel for the revision petitioner submits that the conditions imposed as security to release the vehicle is unsustainable and illegal in view of the first proviso to section 23A of Protection of River Banks and Regulation of Removal of Sand Act, 2001, brought to the Statute book by way of amendment with effect from 7.3.2013. The learned counsel submits that the learned Magistrate imposed the conditions in adherence to the conditions laid down by the Full Bench of this Court in Shan C.T. v. State of Kerala and others - 2010 (3) KLT 413. The above decision was caused to be laid down at a time when there was no provision in the above Statute to release the vehicle to interim custody. But, subsequent to the said decision, the Protection of River Banks and Regulation of Removal of Sand Act , 2001, was amended incorporating the provision to release the vehicle under interim custody, and the newly inserted provision does not stipulate such Crl.R.P. No. 1645 of 2014 -3- conditions specified in the above decision of this Court.
3. In short, by the commencement of a specific provision by way of amendment in the Statute book the conditions imposed by the Full Bench of this Court got redundant and cannot be enforced.
4. The short question that arises for consideration is whether the conditions imposed by the Full Bench of this Court in 2010 (3) KLT 413 can be held redundant and unenforceable by the commencement of Section 23A by way of amendment in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.
5. It is the case of the revision petitioner that conditions were imposed in the decision of this Court in 2010 (3) KLT 413 FB, in a situation where there was no provision in the Statute to release the vehicle under interim Crl.R.P. No. 1645 of 2014 -4- custody. Now, the situation is otherwise and by the commencement of section 23A, the provision itself says that the vehicle under confiscation proceedings can be released on interim custody on sufficient security. Therefore, the court below ought not have imposed the conditions laid down by this Court as security in the above decision, in the instant case. But, going by the impugned order it can be seen that the court below has not placed reliance on the decision in 2010 (3) KLT 413 FB in the matter of imposing the conditions as security. Going by the amended provision section 23A, it can be seen that the statutory mandate is that the property seized can be released to any person on sufficient security and such release shall be during the completion of the confiscation proceedings under this Act.
6. Thus, the court is vested with a discretionary jurisdiction to impose conditions as sufficient security, to its satisfaction. It is pertinent to note that the legislature has Crl.R.P. No. 1645 of 2014 -5- employed the word "sufficient" preceding to the word "security". If that be so, particularly when the court below had not relied on the Full Bench decision, I am unable to find that the court below ought not have imposed the conditions laid down by the Full Bench, in the above decision. Moreover, generally, the imposition of conditions is a matter to be dealt under the discretionary jurisdiction of the court. Therefore, the question to be considered is whether the conditions are sufficient to make sure the production of the vehicle for confiscation proceedings as and when required and if not produced, whether the total value of the vehicle can be realised from the person to whom the vehicle was released under interim custody. It is also pertinent to note that the nature of security to be imposed are not specified under section 23A of the Act. In the absence of it the nature of security or conditions specifically prescribed by the Full Bench decision of this Court in 2010 Crl.R.P. No. 1645 of 2014 -6- (3) KLT 413 still stands in force and the Court below can be justified in imposing such conditions as sufficient security.
7. In that angle, I am of the view that the imposition of Rs.9,000/- (i.e., 30% of the value of the vehicle) is just and proper. But, at the same time I am of the view that the petitioner can be given an option to furnish property security instead of Bank Guarantee, if the petitioner prefers so, as both would serve same purpose. I find no other reason to interfere with the impugned order.
8. Hence the impugned order shall stand modified to the effect that the petitioner can provide security instead of Bank Guarantee, if the petitioner prefers so.
This Criminal Revision Petition is disposed of accordingly.
Sd/-
K. HARILAL, JUDGE //True Copy// P.A. to Judge jjj